recorded.
to prevent colorization of black and white
films is an example of a moral right. Moral
January 2, 20xx
rights are generally of most concern to
visual artists.
Dear Examiner:
The Berne Convention (an international
My copyright registration #TX 1234657 in
copyright treaty) requires that signatory
the textbook entitled French for First Graders
countries extend these rights to authors. (See
was transferred in full to Kiddie Publications
discussion in Chapter 12, “International
for a period of ten (10) years, commencing
Copyright Protection.”) In 1991, Congress
on January 1, 20xx. This is to notify you that
amended the Copyright Act to extend
the transfer has terminated and I am the sole
certain moral rights to visual artists (see
owner of copyright #TX 1234567.
Section 106A of the Copyright Act), but
Sincerely,
Jacques Paul Jones
the United States has not granted similar
rights to authors. The courts will have to
Jacques Paul Jones
decide whether moral rights must be granted
to writers under American copyright law
pursuant to the Berne Convention.
214 | THE COPYRIGHT HANDBOOK
However, American courts have recognized interests differ in these transactions, we’l
certain types of rights that are analogous
examine them first from an author’s and then
to moral rights, although they may not be
from a publisher’s or editor’s point of view.
referred to as such. For example, any author
of a work published in the United States
Transfers From the Writer’s
retains the right to have his or her authorship Point of View
continuously recognized on works that
remain true to the original. Conversely,
Publishing jargon
an author retains the right to have his or
her name taken off a work that has been
Editors, literary agents, and others in the
substantially changed from the original.
publishing business have their own jargon
These rights do not come from the Copyright to describe an author’s copyright rights. An Act, but rather from the trademark laws,
author attempting to sell an article or other
which prohibit misrepresentation of a
contribution to a magazine, a newspaper,
product’s origins. In addition, one court
or another serial publication is likely to
has held that unauthorized changes in a
encounter some of the following terms.
work that are so extensive as to impair its
All world rights. Transfer of all world
integrity constitute copyright infringement. rights or all rights means that the author
(See Gil iam v. American Broadcasting Cos., assigns all of his or her copyright rights to 538 F.2d 14 (2d Cir. 1976).) (The British
the magazine or another serial publication.
comedy group Monty Python obtained an
The publication becomes the sole copyright
injunction stopping ABC from airing Monty owner. It may publish the work anywhere in
Python programs it had obtained a license
the world any number of times, syndicate it,
to broadcast and had heavily edited.)
use it in databases, create derivative works
from it or permit others to do so, or do
anything else it wants with it. The author
Copyright Transfers Between
may not resell the work, create derivative
Freelance Writers and Magazines
works from it (for example, use it as a
and Other Periodicals
chapter in a book), or use it in any other
way without the magazine’s permission—
Now that you have a general understanding
the author no longer owns the work.
of copyright transfer law, let’s see how it
All world serial rights. A transfer of all
applies to the relationship between authors
world serial rights means that the publisher
and publishers of magazines, newspapers,
acquires an exclusive license to publish the
and similar publications (often cal ed serial
contribution in newspapers, magazines, and
publications). Since publishers’ and writers’
other serial publications throughout the
CHAPTER 8 | TRANSFERRING COPYRIGHT OWNERSHIP | 215
world any number of times for the duration it, create derivative works from it, or do
of the copyright term. The author of the
anything else desired with it—he or she
article or other contribution may not resell
owns all the other rights in the work.
it to any other serial publication anywhere
Second serial rights. A transfer of second
in the world. But the author retains all
serial rights (or reprint rights) gives a
other rights—for instance, the author may
magazine, a newspaper, or another serial
use it as a chapter in a book or sell it for
publication a nonexclusive license to reprint
adaptation as a movie or video.
a work once after it has already appeared in
another serial publication.
One-time rights. A transfer of one-time
Compare to Work-Made-
rights (also called simultaneous rights) gives
for-Hire Agreements
the magazine or other publication the right
Magazines and other periodicals are
to publish a previously unpublished work
permitted to enter into work-made-
once; but, in contrast to a grant of first
for-hire agreements with freelance
serial rights (above), the author may sell
contributors. Technically, a work-made-for-
the work to other publications to appear
hire agreement is not a transfer of rights;
at the same time. This is a nonexclusive
rather, the employer is considered to be
license, rather than an ownership transfer.
the author of the work. But the practical
Newspapers often purchase one-time rights
result is the same as a transfer of all rights:
from freelance contributors.
The magazine owns all the rights in the
work. The only difference is that an author
Which rights should you sell?
who makes an al -rights assignment may
It is always in a writer’s best interests to retain
terminate the assignment after 35 years
and retains certain moral rights. Work-
as many rights as possible. Let’s examine the
made-for-hire agreements are discussed in
consequences of an al -rights grant compared
Chapter 7, “Initial Copyright Ownership.”
with a grant of first North American rights.
EXAMPLE 1: George writes a short story
about a six-year-old’s experiences at
First North American serial rights. A grant
Christmas. In 2005, he sel s all his rights in
of first North American serial rights means
the story to Maudlin Magazine for $750. The
that the magazine or other serial publication
/> story appears in Maudlin’s December 2005
has an exclusive license to publish the work
issue. The story proves to be so popular
for the first time in North America (the
that Maudlin reprints it every December
United States and Canada). Once the work
thereafter. Not only that, every year it sel s
has been published, the author may resell
reprint rights to the story to several other
216 | THE COPYRIGHT HANDBOOK
magazines and newspapers throughout the
TIP
country. George gets absolutely nothing
You’ll find that many magazines
from all these reprintings.
will initially ask for all your rights, but will be
willing to take less if you negotiate with them.
EXAMPLE 2: Assume instead that George
only sold Maudlin Magazine first North
Don’t be afraid to speak up and demand to be
American serial rights to his story in 2005.
treated fairly.
After Maudlin printed the story in North
America for the first time in December 2005,
it had no further rights in the story. George,
Transfers From a Magazine’s
and only George, could permit Maudlin or
Point of View
other magazines and newspapers to reprint
If you’re the editor or publisher of a magazine,
it. The income George receives from these
periodical, or similar publication, you need to
reprintings far exceeds the $750 he got from
Maudlin for the story’s initial publication.
obtain the rights you need from freelancers
with the least amount of paperwork and the
fewest headaches possible. Be aware that
The Real World of
a written agreement is always necessary to
Publishing Practice
purchase an exclusive right from a writer—for
example, first North American serial rights.
Traditional y, magazines and other periodi-
If you want to be sure a freelancer’s piece
cals usual y only acquired North American
will appear first or only in your magazine,
serial rights, second serial rights, or one-time
you must use a written agreement. In the
publication rights. This meant that after
the article appeared in the magazine, the
absence of a written agreement, a publisher
author could resell it elsewhere. However,
obtains only a nonexclusive license to publish
things are changing fast in magazine pub-
a freelancer’s piece in the magazine or other
lishing. An increasing number of magazines
periodical. Thus, the author can sell it to
seek to obtain all the writer’s rights or,
other magazines (or use it in any other way).
even worse from the writer’s point of view,
Exclusive first publication rights are of
have the writer sign a work-made-for-hire
most importance to publishers of national
contract under which the magazine is con-
magazines. If you’re publishing a newspaper or
sidered to be the work’s author. To put it
regional publication, it probably won’t matter
mildly, writer’s groups are bitterly opposed
much if the same piece appears at the same
to this trend and advise freelancers never
time (or has already appeared) in another
to sign work-made-for-hire contracts.
periodical in a different part of the country.
CHAPTER 8 | TRANSFERRING COPYRIGHT OWNERSHIP | 217
Most magazines, especially regional
in the United States. The territory is often
publications, are not interested in resale
extended to all countries in which English is
rights and adaptation rights (such as film
spoken; these are called all English language
rights or the right to include the piece in a
rights. The most expansive possible grant
book). These rights have value only if there
is all-world rights—that is, the right to
is a market for them; usually, there isn’t.
publish the book in all countries in all
You should develop a transfer agreement languages.
form. This may be in the form of a letter
Book publishers usually obtain the
or a more formal-looking contract. See the
exclusive right to publish a work for the full
sources listed in “Transfer Documents,”
copyright term, but, in some cases, a shorter
below, for sample forms. If you’re considering period may be involved.
using a work-for-hire agreement, be sure to
read the discussion of work made for hire in
Importance of Foreign
Chapter 7, “Initial Copyright Ownership.”
Language Rights
The right to translate and sell a book in a
Copyright Transfers Between
foreign language can be very important
Writers and Book Publishers
for some books, such as popular novels,
Book publishers operate differently from
art books, and children’s books. These
magazines or newspapers.
rights are usual y sold language by language
at international book fairs (such as the
Frankfurt, Germany, book fair) and by
Publishing Argot
international literary agents.
The copyright rights in a book are normal y
divided into two categories: the primary
publication rights and subsidiary (sub) rights. Subsidiary or sub rights
Primary publication right
All the other copyright rights in a book
The exclusive right to publish a work in
are called subsidiary or sub rights. These
book form for the first time in the English
include film, television, radio, and live-
language is sometimes called the primary
stage adaptation rights; the right to publish
right. Publishing agreements vary as to the
all or part of the work in a newspaper,
territory to which this right extends. At a
a magazine, or another periodical prior
minimum, a U.S. publisher will normally
to or after book publication; book club
want the exclusive right to publish the work publication rights; the right to publish the
218 | THE COPYRIGHT HANDBOOK
book in a foreign language or license others Electronic Publishing and
to do so; the right to create and distribute
Ownership of Electronic Rights
nondramatic audio recordings of the work;
and the right to publish braille, large-type,
As used in this chapter, electronic rights
and other editions for the handicapped.
means the legal right to reproduce,
distribute, adapt, and publicly display and
perform a work in electronic form. This
Transfers From an Author’s
includes:
Point of View
• creating electronic versions of written
It is usually in an author’s best interest to
works that can be downloaded from
retain as many rights as possible, unless, of
websites such as Amazon.com
course, the publisher
pays so much that it
• placing all or a substantial part of a
makes sense to assign all rights. The more
work in its original form on magnetic
bargaining power an author has, the more
media used directly in computers such
rights the author will likely be able to keep.
as a CD-ROM or DVD-ROM
However, it can make good sense to sell
• reproducing all or a substantial part
subsidiary rights to a publisher in return
of a work in its original form in an
for a share of the profits (at least 50%) if
electronic database like Lexisnexis
the publisher is better able to market these
• adapting a work into a multimedia
rights than the author or the author’s agent.
work, whether distributed online
A large full-line publisher will often know
or on a CD-ROM, DVD-ROM, or
the subsidiary rights markets well and have
computer game cartridge, and
the contacts and experience to effectively
• publishing on demand—that is,
market an author’s sub rights.
transferring a digital copy of a work
from a publisher’s database to a
Transfers From a Book
bookstore, which prints it out and sells
Publisher’s Point of View
the consumer the printed copy.
Each of these uses can be regarded as
It is in a book publisher’s best interest to
a separate electronic right and dealt with
demand an assignment of all rights from the separately in a publishing agreement.
author in return for a royalty and a share of
the profits from the sale of the subsidiary
Initial Ownership of Electronic Rights
rights listed earlier. This gives the publisher
the right to sell all the subsidiary rights one Electronic rights are no different from any by one and keep part of the profits. A 50–
other copyright rights. They are initially
50 split of the profits from sub rights sales is owned by a work’s author.
common, but other divisions are also used.
CHAPTER 8 | TRANSFERRING COPYRIGHT OWNERSHIP | 219
Self-employed individuals who create
their work themselves, self-employed
written works alone or with others (the type authors normally profit from their
of people we normally think of as authors)
copyrights by selling their rights to
will initially own the electronic and all
publishers or others to exploit. In today’s
other copyright rights in their works. (See
publishing environment, such sales will
The Copyright Handbook Page 38